IN RE: D. H. (2011)

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

In this dependency case (Welf. & Inst.Code, § 300 et seq.) ¹  Richard H., the father of the dependent minor child D.H. (Father and the minor, respectively), appeals from a section 366.26 order terminating his parental rights over the minor.   Father contends that the relationship between himself and the minor is a beneficial one for the minor and it should be preserved.   Our review of the record indicates Father's position is not well taken.   Therefore, we will affirm the order terminating his parental rights.²

BACKGROUND OF THE CASE

1. Detention, Adjudication and Disposition

In June 2009, when the minor was just 11 months old, Mother and Father were arrested at a department store.   The minor was with them at the time.   Store personnel recognized the parents as being persons who previously had been videotaped at various branches of the department store.   Father was caught on the video surveillance shoplifting merchandise from those stores.   He was using a magnetic key issued by the department store for its personnel to open glass showcases in the electronics departments.

At the time of his arrest Father was found to be in possession of methamphetamine and counterfeit money.   Father admitted to a social worker from the Los Angeles County Department of Children and Family Services (the Department) that the methamphetamine was his, and he stated he used drugs frequently and had used methamphetamine that morning.   A sheriff's officer stated Father was arrested on that day for receiving stolen goods, burglary, forgery and drug possession.   Father told the officer he was out of work, homeless and living in a hotel room.   He admitted to having stolen items from the department store, saying he found the magnetic store key on the floor in one of the stores.   He stated he made counterfeit money on a computer printer he had in his hotel room.   The hotel room was searched and officers found boxes containing personal information, credit card numbers and hotel receipts, and on that basis Father was also charged with identity theft.   The record shows he has prior convictions for reckless driving/no injury (two convictions), driving with a suspended or revoked license (three convictions), driving without a license, possession of a controlled substance, and grand theft of property over $400.

Although store personnel identified Mother as being Father's accomplice in prior department store shoplifting, Mother told the Department social worker that she had not stolen anything from the stores.   She denied having used drugs in the prior six months however when she was arrested she was found to be in possession of methamphetamine and marijuana.   A sheriff's officer told the social worker that Mother was arrested for shoplifting at the store and she had four outstanding warrants for a prior shoplifting arrest.   Later she was also charged with possession of a controlled substance, possession of a forged item, unlawful use of personal identity, and identity theft.   Information obtained by the Department shows she had three prior convictions involving theft.

The Department detained the minor to a foster home.   The social worker described him as an active and inquisitive child who interacted well with other people.   His paternal grandmother (PGM) and paternal step-grandfather (together, paternal grandparents), visited him the day of the parents' arrest and indicated they would be willing to care for him.   They already had an established relationship with him because of substantial visitation time, including the minor spending substantial time in their home.

The minor was detained by the court.   Father was found to be his presumed father.   At the arraignment hearing on June 22, 2009, the court ordered monitored visits for Mother and Father three times per week, three hours each visit once they were released from custody, and monitored visits while still in custody.   In mid-July 2009, the court allowed the paternal grandparents to have a vacation visit pending the Department's final clearance of the paternal grandparents as caretakers of the minor.   By that time the parents were still incarcerated.

When interviewed for a July hearing Mother admitted that she has a drug problem.   Father stated that prior to being arrested he was using methamphetamine “pretty much every day.”   He stated he had been using it for a year and a half to two years.   He stated that he “always was aware of [the minor]” and he “took pride in caring for him.”   He stated he would fix the minor's bottle at night in order to let Mother sleep because Mother is the one who cares for the minor “most of the time.”   He stated he rarely used marijuana but did use it to “go to sleep.”   He denied using it in the presence of the minor and Mother also stated he did not use it in the minor's presence.   The social worker opined that the parents did not appear to understand that even though they did not use drugs in the presence of the minor, their being under the influence could impede their ability to care for the child.   The social worker reported that both parents claimed to have previously completed substance abuse programs.

The section 300 petition adjudication hearing was in late July 2009.   The parents remained incarcerated.   A report for that hearing states Father was found guilty in criminal court on the charges of burglary and identity theft, and Mother was found guilty of possession of a controlled substance, identity theft, and possession of a forged item.   The social worker opined that neither parent appeared to be concerned that their illegal activities and substance abuse negatively affect the minor, and neither had taken full responsibility for their crimes in that Father blamed the economy and Mother blamed Father.

At the hearing the court sustained allegations that Mother and Father placed the minor in an endangering situation when they engaged in the criminal activity at the department store while the minor was with them;  as a result of that criminal activity Father was convicted of burglary and identity theft, and Mother was convicted of possession of a controlled substance, possession of a forged item, and identity theft;  and these matters create a detrimental home environment and place the minor at risk of physical and emotional harm.   The court also sustained allegations that Mother and Father have a history of illicit drug abuse and are current users of methamphetamine;  on the day of their arrest Father was under the influence of illicit drugs while the minor was in his care and supervision;  on that same date Father possessed methamphetamine and marijuana within the minor's access and was arrested for such possession;  and this use by the parents of illicit drugs creates a detrimental home environment and places the minor at risk of physical and emotional harm.

The minor was declared a dependent of the court, custody was taken from the parents, and reunification services were ordered.   The parents' case plans consisted of parenting classes, a drug rehabilitation program with random weekly testing upon their release from incarceration, and services for incarcerated parents.   The paternal grandparents were given permission to take the minor to visit the parents if the Department deemed them approved monitors.

2. Review Hearings

A September 2009 Department progress report states that the paternal grandparents' home was approved for placement of the minor.   He had been living with them since the court allowed them to have an extended vacation visit in their home in July of that year.   They were seeking custody of him until such time as he could be returned to the parents' care.   The paternal grandparents wanted the parents to maintain their relationship with the minor.

By the time of the January 27, 2010 section 366.21, subdivision (e) six-month review hearing, the minor was 18 months old.   The frequency of the parents' visits with him was impacted by the fact that the paternal grandparents reside in San Diego County.   When Mother's visits were over and she would say good-by to the minor, he did not object to her leaving, but he did object the one time that the PGM had to briefly leave the visitation room.   He stopped what he was doing and began to cry, ran to the door, and was “clearly distraught” that the PGM had left.   He did not respond to Mother's and the social worker's efforts to calm him.   When the PGM returned he went to her, asked to be picked up, became calm, and returned to his play.

Father was having visits every other weekend at his place of incarceration in northern Los Angeles County.   He was only able to visit with the minor through a glass partition using a telephone.   They would play a game of touching hands through the glass.   Because the visits were only permitted on weekends the social worker was not able to observe them, but the paternal grandparents reported no problems during the visits.   The PGM told the social worker that Father was “working to become a responsible adult and would like to be able to spend time with his son.”

The PGM requested that the minor continue to live with the paternal grandparents.   She stated that the minor had adjusted well to their home, was very happy there, and was “a joy to have around.”   She indicated he has “incredible” social skills, loves people, was learning to play with puzzles, numbers and letters, and was building with his Lego blocks.   During her various visits to the paternal grandparents' home the social worker observed that they were meeting the minor's needs, the minor was strongly attached to them, and he was observed to be a happy child.   The paternal grandparents were willing to adopt the minor if his parents did not reunify with him.   The Department was working on a concurrent plan of adoption and it recommended that adoption be the permanent plan for the minor.

Father was attending monitored visits with the minor every other week and meeting with the social worker.   He had begun a program of drug rehabilitation, counseling and parenting skills in his place of incarceration, but that did not occur until early December 2009.   Prior to that he told the Department social worker that although he had heard of the program he did not know he could participate in it and did not know how to enroll.   Drug testing was not available to him because of his incarceration.   He was required to attend a six-month inpatient rehabilitation program as part of his criminal case probation, and he stated he would be released from jail in March 2010.   Both parents told the social worker of their desire to be reunified with the minor.   Father stated he had been sober during his entire incarceration and he was feeling “much better.”

The social worker opined that even though it was clear that both parents love the minor, Mother was making poor choices in her friends and associates, which could put the minor at risk of abuse from others, both parents were only in partial compliance with their case plans, and Father would be in a six-month program upon his release from incarceration, and therefore, returning the minor to the care of either parent would present a serious concern for his safety.   The social worker opined that the minor continued to be doing well living with the paternal grandparents and was “clearly comfortable” with them.   The Department recommended that the court set a section 366.26 hearing to address adoption, terminate reunification services, and continue the parents' monitored visits.

The January 2010 six-month review was continued to March for a contested hearing.   By the time of that hearing, Mother had been arrested on new burglary, theft, and probation violation charges and was waiting arraignment, and Father had been released from jail and sent to a rehabilitation facility in Los Angeles for a minimum of six months.   In addition to the substance abuse components of his program, he was enrolled in parenting and anger management classes, attending AA/NA meetings, and attending his classes and group meetings.   Father's counselor opined that Father was moving in the right direction.   He was having weekly visits with the minor, was delighted to finally be able to visit the child without a glass partition between them, and he became emotional when speaking to the Department social worker about the visits.   The PGM stated the visits were going very well.   However, the social worker noted that after his stay in the rehabilitation program Father would have to prove, among other things, that he could stay sober on his own before the minor could be returned to him.   Based on the minor's young age, his having been living with his paternal grandparents for approximately eight months, and his doing very well in their home and being very attached to them, the Department recommended that both parents' reunification services be terminated and the court set a hearing to select a permanent plan for the child.

At the March 2010 review hearing, the Department argued that the parents were not in full compliance with their case plans, their efforts at compliance had only been recent, Mother had continuing criminal problems and had to stay in her treatment program at least six months, Father was not ready to be released from his program, after their programs the parents would need to show they could remain sober, and therefore their reunification services should be terminated.   The minor's attorney joined in that analysis, saying that both parents were still in the beginning stages of recovery and both have drug problems and a propensity to commit crimes, and the minor needs stability in his relationships and is very appropriately placed with his paternal grandparents.   The parents urged the court to order another six months of reunification services, arguing that they were doing well at that point in time, had attended classes while incarcerated, and were motivated to reunify with the minor.   However, the court found that the parents' success at rehabilitation was speculative, and it terminated reunification services.   The court noted that the PGM had been very good about seeing to the parents' visitation and it opined that she would continue to allow the parents to be in the minor's life.   A section 366.26 hearing was set for July 2010 and an order for reasonable monitored visits for both parents was made.

3. The Section 366.26 Hearings

The adoption home study for the paternal grandparents was approved by the time of the July 2010 section 366.26 hearing.   The Department's report for that hearing states that Father was having weekly visits with the minor that were monitored by the PGM and were reported to go well.   The report states that the minor does not show emotion when his visits with the parents come to an end, and the social worker opined that neither parent had an established relationship with the minor.   The social worker noted that although Father had visits with the minor while he was incarcerated, “a visit [by] a very young child through glass is not sufficient to establish a child/parent relationship as the child cannot physically, appropriately interact with their parent.”

At the July hearing the court set the section 366.26 issue for a contested hearing in September 2010.   For that September hearing the PGM reported that the minor, who was then two years old, was still very happy in the care of the paternal grandparents, was outgoing and friendly, and was learning new words and phrases every day.   The social worker reported the minor was well adjusted and happy, strongly attached to both paternal grandparents, had a vocabulary beyond his developmental level, often spoke in sentences, was learning his colors, numbers and letters with the paternal grandparents' help, and he could recognize words and pictures in his books.   The social worker noted that the paternal grandparents had been involved in the minor's life since he was born.

The parents remained in their respective rehabilitation programs.   The social worker observed that despite the long distance between her home and the parents' treatment centers, and despite the “hostility shown to the [PGM],” the PGM continued to facilitate visits between the parents and the minor at least once a month at the parents' convenience, and the PGM had also provided a large birthday cake and party supplies for the minor to share with his parents “and the other residents of the facility.”   Father was being allowed to leave his facility to have weekend visits and stay with his sister who lives by the PGM, which allowed him to have monitored visits at the PGM's home.   The paternal grandparents remained clear that they would continue to foster the relationship between the minor and his parents so long as it is safe for the minor to do so, and they were willing to adopt the child to keep him safe.   The social worker opined that the minor is an adoptable child, he sees his paternal grandparents' home as his home, and moving him from there would be detrimental to his well being.   He was two years old at that time.

At the section 366.26 hearing the social worker testified that Father was keeping his scheduled visits with the minor and although she had not had an opportunity to observe any of the visits, the PGM reported that the visits go well.   Both parents argued that their visits with the minor had been appropriate and consistent, they have a relationship with the minor which is beneficial to the child, continuing that relationship is in the minor's best interest, and terminating parental rights would be detrimental to the minor.   The dependency court found that although the parents did visit with the minor, the diligence in visitation had been on the part of the paternal grandparents, who made sure the visits happened, rather than the parents actually seeing to the visits themselves.   The court stated that although the parents were appropriate during the visits, that “does not make a parental role.”   Finding that the minor is adoptable, that adoption is an appropriate permanent plan for him, and returning him to the parents' care would be detrimental to him, the court terminated parental rights and designated the paternal grandparents as the prospective adoptive parents.   This timely appeal by Father followed.

CONTENTION ON APPEAL

Father contends that he and the minor have a beneficial relationship that should be preserved and therefore the dependency court erred when it terminated of his parental rights.

DISCUSSION

1. Adoption Is the Preferred Permanent Plan

When a parent has failed to reunify with his or her child, and the focus of the dependency court turns from reunification to a permanent plan for the minor, adoption is the Legislature's first choice for a permanent plan because it is more secure and permanent than a legal guardianship or long term foster care.  (In re Celine R. (2003) 31 Cal.4th 45, 53.)   Section 366.26, subdivision (c) provides that when a court finds by clear and convincing evidence that it is likely a dependent child will be adopted, “the court shall terminate parental rights and order the child placed for adoption.”   A finding that the child continued to be removed from the custody of the parents and reunification services were terminated “shall constitute a sufficient basis for termination of parental rights” (§ 366.26, subd. (c)), and the court must terminate those rights unless the court finds to be true any of the circumstances set out in section 366.26, subdivision (c)(1)(A) or (c)(1)(B)(i)-(vi).

It is a parent's burden to prove that one or more of those (c)(1)(A) or (B) exceptions to termination of parental rights apply to his or her child.  (In re Aaliyah R. (2006) 136 Cal.App.4th 437, 449.)   When a parent claims one or more of the exceptions, the claim must be examined in light of the Legislature's preference for adoption, and only in exceptional circumstances will the court choose a permanent plan other than adoption.  (In re Celine R., supra, 31 Cal.4th at p. 53.)

2. Standard of Review Regarding Statutory Exceptions to

Termination of Parental Rights

In reviewing a trial court's determination on the applicability of statutory exceptions to termination of parental rights, appellate courts have utilized both the substantial evidence test and the abuse of discretion test.  (In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1351.)   The Jasmine D. court observed that “[t]he practical differences between the two standards of review are not significant.  ‘[E]valuating the factual basis for an exercise of discretion is similar to analyzing the sufficiency of the evidence for the ruling․  Broad deference must be shown to the trial judge.   The reviewing court should interfere only “ ‘if [it] find[s] that under all the evidence, viewed most favorably in support of the trial court's action, no judge could reasonably have made the order that he [or she] did.’  ․ “ ‘ [Citations.]  However, the abuse of discretion standard is not only traditional for custody determinations, but it also seems a better fit in cases like this one, especially since [subdivision (c)(1)(B) of] the statute now requires the juvenile court to find a ‘compelling reason for determining that termination would be detrimental to the child.’  [Citation.]  That is a quintessentially discretionary determination.   The juvenile court's opportunity to observe the witnesses and generally get ‘the feel of the case’ warrants a high degree of appellate court deference.  [Citation.]”  (Ibid.)

3. Parameters of the Parental Relationship Exception

Father contends the trial court erred when it did not find a subdivision (c)(1)(B)(i) “parental relationship” exception to termination of his parental rights.   That exception has three components.   It applies when (1) the trial court “finds a compelling reason for determining that termination [of parental rights] would be detrimental to the child” because (2) “[t]he parents have maintained regular visitation and contact with the child” and (3) “the child would benefit from continuing the relationship.” (§ 366.26, subd. (c)(1)(B)(i), italics added.)   Application of the exception is decided on a case-by-case basis, taking into account such factors as the minor's age, the portion of the minor's life spent in the parent's custody, whether interaction between the child and parent is positive or negative, and the child's particular needs.   (In re Autumn H. (1994) 27 Cal.App.4th 567, 575-576.)  “Parent-child relationships do not necessarily conform to a particular pattern.   The juvenile court should be concerned not with finding a certain type of parental relationship but with the interests of the particular child or children before it, and whether there is a compelling reason not to terminate parental rights.”  (In re Jasmine D., supra, 78 Cal.App.4th at p. 1350.)

To establish the applicability of the exception, a parent must show more than “ ‘frequent and loving contact’ [citation], an emotional bond with the child, or that the parents and child find their visits pleasant.  [Citation.]. Rather, the parents must show that they occupy ‘a parental role’ in the child's life.   [Citation.]”  (In re Andrea R. (1999) 75 Cal.App.4th 1093, 1108.)  “[A] child should not be deprived of an adoptive parent when the natural parent has maintained a relationship that may be beneficial to some degree but does not meet the child's need for a parent.   It would make no sense to forego adoption in order to preserve parental rights in the absence of a real parental relationship.”  (In re Jasmine D., supra, 78 Cal.App.4th at p. 1350.) ³

In In re Autumn H., supra, 27 Cal.App.4th at p. 575, the court described parental relationships that can prevent termination of parental rights as ones that “promote[ ] the well-being of the child to such a degree as to outweigh the well-being the child would gain in a permanent home with new, adoptive parents.   In other words, the court balances the strength and quality of the natural parent/child relationship in a tenuous placement against the security and sense of belonging a new family would confer.   If severing the natural parent/child relationship would deprive the child of a substantial, positive emotional attachment such that the child would be greatly harmed, the preference for adoption is overcome and the natural parent's rights are not terminated.  [¶] Interaction between natural parent and child will always confer some incidental benefit to the child.   The significant attachment from child to parent results from the adult's attention to the child's needs for physical care, nourishment, comfort, affection and stimulation.  [Citation.]  The relationship arises from day-to-day interaction, companionship and shared experiences.  [Citation.]  The exception applies only where the court finds regular visits and contact have continued or developed a significant, positive, emotional attachment from child to parent.”

In In re Casey D. (1999) 70 Cal.App.4th 38, 51, the court explained that its reference in In re Autumn H. to “day-to-day interaction, companionship and shared experiences” between parent and dependent child is not required to be taken literally.   The Casey D. court stated:  “Another was of stating the beneficial parent-child concept described in Autumn H. is:  a relationship characteristically arising from day-to-day interaction, companionship and shared experiences.   Day-to-day contact is not necessarily required, although it is typical in a parent-child relationship.   A strong and beneficial parent-child relationship might exist such that termination of parental rights would be detrimental to the child, particularly in the case of an older child, despite a lack of day-to-day contact and interaction.   The Autumn H. standard reflects the legislative intent that adoption should be ordered unless exceptional circumstances exist, one of those exceptional circumstances being the existence of such a strong and beneficial parent-child relationship that terminating parental rights would be detrimental to the child and outweighs the child's need for a stable and permanent home that would come with adoption.”   In In re S.B. (2008) 164 Cal.App.4th 289, 299, 300, the same court that decided Autumn H. stated that to demonstrate the type of relationship addressed in the parental relationship exception to termination of parental rights, a parent need not show that the minor's “primary attachment” is to the parent.

4. There Was No Abuse of Discretion When the Trial Court Found

That the Parental Relationship Exception Does Not Apply Here

This is a case where the subject minor child was detained from his parents at the very young age of 11 months, and thereafter had spent over half of his life living away from them by the time parental rights were terminated.   This is also a case where Father admitted that he was not the parent who cared for the minor “most of the time” prior to when the minor was detained by the Department and the court.   Moreover, Father never advanced beyond monitored visits with the minor after the minor was detained.   All of that makes for a difficult burden that Father must meet when he argues that his relationship with the minor is such that it comes within the parameters, which we have set out above, that delimit the parental relationship exception to termination of parental rights.   Father cannot meet that burden because the record contains very little information about his relationship with the minor.   Rather, the information about the minor's relationships concerns the paternal grandparents.   During the lengthy period of time when he was not in the parents' care, the minor was living with the paternal grandparents, with whom he already had an established relationship.   It is they who have been repeatedly found to meet the minor's daily needs, nurture him, and delight in him, and he is clearly bonded with them.

The only evidence of what Father's relationship with the minor was like prior to the Department and the court becoming involved in the family's life is Father's admission that Mother was the child's primary caregiver.   The only evidence of the relationship between Father and the minor during Father's period of incarceration is that (1) Father and the child were having visits every other weekend, during which Father was only able to visit with the minor through a glass partition using a telephone, and he and the minor played a game of touching hands through the glass;  and (2) the paternal grandparents reported no problems during those visits.   Because the visits were only permitted on weekends the social worker was not able to observe them and report on the depth of the relationship between Father and the minor.

By mid-March 2010, Father was having weekly visits with the minor at his in-patient rehabilitation center.   Father was delighted to finally be able to visit the child without a glass partition between them, and he became emotional when speaking to the Department social worker about the visits;  however, that information only reflects Father's feelings about the visits, not the minor's feelings about them.   The PGM stated the visits were going very well, but the record does not reflect the minor's emotional reaction to the visits and his emotional ties to Father.

The Department's report for the July 2010 section 366.26 hearing states Father's weekly visits with the minor continued to be monitored by the PGM and were reported to go well.   However, the report states that the minor does not show emotion when his visits with the parents end, and the social worker opined that neither parent has an established relationship with the minor.   The social worker further opined that although Father had visits with the minor while he was incarcerated, “[such] visit[s by] a very young child through glass [are] not sufficient to establish a child/parent relationship as the child cannot physically, appropriately interact with their parent.”

By September 2010, Father was allowed to leave his facility to have weekend visits and stay with his sister who lives by the paternal grandparents, which allowed him to have monitored visits at their home.   However, the social worker opined that the minor is an adoptable child, the minor views his paternal grandparents' home as his home, and moving him from there would be detrimental to his well being.   He was two years old at that time.

At the September 2010 section 366.26 hearing the social worker testified that Father was keeping his scheduled visits with the minor and although she had not had an opportunity to observe any of the visits, the PGM reported that the visits go well.   Very importantly, although the PGM was present at most of the hearings, including that September section 366.26 hearing, she was never asked to take the stand and describe the minor's visits with Father so that the court could have her information about the child's emotional attachment with Father.

Thus, nothing in the appellate record describes the type of relationship between Father and the minor that is necessary to meet the parental relationship exception to termination of parental rights.   Nothing indicates that the relationship between Father and the minor child is so substantial and significant such that we can say the trial court abused its discretion when it did not find that terminating parental rights would greatly harm the minor.   Nothing indicates that their relationship promotes the minor's well-being to such a degree as to outweigh the well-being the minor would gain from living with the paternal grandparents or some other person(s) under a decree of adoption.

DISPOSITION

The order from which Father has appealed is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

We Concur:

FOOTNOTES

FN1. Unless otherwise indicated, all references herein are to the Welfare and Institutions Code..  FN1. Unless otherwise indicated, all references herein are to the Welfare and Institutions Code.

FN2. The minor's mother Pamela S. (Mother) has not appealed the termination of her parental rights and our discussion of the case as it pertains to her is therefore limited..  FN2. The minor's mother Pamela S. (Mother) has not appealed the termination of her parental rights and our discussion of the case as it pertains to her is therefore limited.

FN3. The evidence of a child's relationship with a parent should be considered in the context of the amount of visitation a parent has been permitted to have.  (In re Brandon C. (1999) 71 Cal.App.4th 1530, 1537-1538.)   Here, Father's visitation was for a period of time limited by his incarceration..  FN3. The evidence of a child's relationship with a parent should be considered in the context of the amount of visitation a parent has been permitted to have.  (In re Brandon C. (1999) 71 Cal.App.4th 1530, 1537-1538.)   Here, Father's visitation was for a period of time limited by his incarceration.

KLEIN, P. J. ALDRICH, J.